This Trial Chamber (“Chamber”) of the International
Tribunal for the Prosecution of Persons Responsible
for Serious Violations of International Humanitarian
Law Committed in the Territory of the Former Yugoslavia
since 1991 (“Tribunal”) is seized
of a confidential and ex parte in part “Prosecution’s
Additional Motion for Protective Measures of Sensitive
Witnesses”, filed on 15 September 2005 (“Motion
”). The Prosecution requests that all fifteen witnesses
mentioned in its Motion be referred to by a pseudonym
in the course of the trial. For six of the witnesses, the Prosecution seeks leave to have the testimony
given in closed session. For four of the witnesses,
the Prosecution further requests the delayed disclosure
of (a) their identity, and (b) their un-redacted statements.
For the remaining witnesses, the Prosecution seeks
leave to have their testimony given with image and/or
voice distortion. The Defence for Mile Mrksic, Miroslav
Radic and Veselin Sljivancanin (“Defence”) filed a
response on 29 September 2005, objecting to most of
the protective measures sought by the Prosecutor (“Joint
Defence Response”).1

II. LAW

The Motion is governed by Articles 20, 21 and
22 of the Statute of the Tribunal (“Statute”) and
Rules 53, 54, 66, 69, 75 and 79 of the Rules of Procedure
and Evidence of the Tribunal (“Rules”).

Article 20(1) of the Statute provides that
proceedings are conducted
“with full respect for the rights of the accused and
due regard for the protection of victims and witnesses”,
and Article 20(4) of the Statute provides that “the
hearings shall be public unless the Trial Chamber
decides to close the proceedings in accordance with
its rules of procedure and evidence”. Article 21(2)
of the Statute provides that “the accused shall be
entitled to a fair and public hearing, subject to Article
22”. Article 22 of the Statute states that protective
measures shall include, but shall not be limited
to, the conduct of in camera proceedings and
the protection of the victim’s identity. The Rules
of the Tribunal echo these provisions. In particular,
Rule 75 states that a Chamber may order appropriate
measures for the privacy and protection of victims
and witnesses, provided that the measures are consistent
with the rights of the accused, and Rule 79 provides
that a Chamber may order that the press and the public
be excluded from all or part of the proceedings for
reasons of inter alia “(ii) safety, security
or non-disclosure of the identity of a victim or
witness as provided in Rule 75.”

The Chamber will also consider the Rules on
disclosure directly related to the Motion. Rule
53(A) provides that in exceptional circumstances,
a Trial Chamber may, in the interests of justice,
order the non-disclosure to the public of any documents
or information until further order. Rule 66(A)(ii)
provides that the Prosecution shall disclose to
the defence within the time-limit prescribed by the
Trial Chamber “copies of the statements of all witnesses
whom the Prosecutor intends to call to testify
at trial, and copies of all written statements take
in accordance with Rule 92bis”. Rule 69(A)
states that in exceptional circumstances, the Prosecutor
may apply to a Trial Chamber to order the non-disclosure
of the identity of a victim or witness who may
be in danger or at risk until such person is brought
under the protection of the Tribunal, and Rule
69(C) provides that “subject to Rule
75, the identity of the victim or witness shall be
disclosed in sufficient time prior to the trial
to allow adequate time for preparation of the defence”.

The Chamber recalls that the burden rests on
the party seeking protective measures to justify
in each case why the measures requested should be
granted.2
Not only must the testimony of the witness be important
to the Prosecution’s case
but the applicant must show that, should it become
publicly known that the witness has testified, there
is a real risk to his or her security or that of his
or her family, rather than a mere general expression
of fear by the witness.3
The Chamber must therefore be satisfied, in view of
the specific reasons provided, that the fear expressed
has an objective foundation.

With regards to closed session, the more extreme
the protection sought, the more onerous will be
the obligation upon the applicant to establish the
risk asserted.4 It is so because the determination
of protective measures requires the Chamber to consider
competing interests, namely on the one hand, the
right of the Accused to a fair and public trial and,
on the other hand, the rights of victims to protection
and privacy. The Chamber will therefore examine
closely the circumstances upon which a party relies
to justify closed session under Rule 79 of the Rules.
In particular, the Chamber will be concerned to ensure
that there is shown to be a real risk to the witness
or his or her family from the prospect of the witness’ public
testimony, and that such risk is sufficiently founded. Moreover, it will need to be shown that less restrictive
measures cannot adequately deal with the witness’ legitimate
concerns or that there exists some other exceptional
circumstance.5

III. DISCUSSION

The Trial Chamber previously seized of this
case in its pre-trial stage issued a decision dated
9 March 2005 granting protective measures for some
of the prospective witnesses who are presently the
subject of the Motion.6
Pursuant to that decision, two of the prospective witnesses
in the instant case, namely P001 and P002, were granted
pseudonyms pending their testimony. With the exception
of these two witnesses, and for the purpose of this
decision only, the Chamber will refer to the other
witnesses who are the subject of the Motion, with
their Prosecution 65ter list numbering (e.g.
witness #12) and not with the pseudonyms proposed
in the Motion.

A. Protective Measures granted by other Chambers
(Rule 75(F)(i)):

The Prosecution requests that the Chamber grants
to witness #51, witness #25
and witness #33 the same protective measures in respect
of this trial as have been granted to them in other
proceedings before the Tribunal, as the reasons and
circumstances underlying these protective measures
remain unchanged and as the actual circumstances of
these witnesses compound the necessity to continue
the protective measures.7
For two other witnesses, i.e. witness P002 and witness # 74,
the Prosecution seeks leave to have the protective
measures granted in other proceedings, augmented.
The Defence object to the measures sought for witness P002,
witnesses #74 and #33, but do not object to the protective measures sought
for witnesses #51 and #25.8

With respect to witness #51, the Prosecution requests
that the witness’ testimony
be given under pseudonym (pseudonym “P028”) and with
image and voice distortion. As for witness #25, the
Prosecution requests that the witness’ testimony be
given under pseudonym (pseudonym “P030”) and with
image distortion. For witness #33,
the Prosecution requests that the witness’ testimony
be given under pseudonym (pseudonym
“P027”) and with image and voice distortion. The Chamber
takes note that witnesses
#51, #25 and #33 have testified in other proceedings
before the Tribunal with the same protective measures
as requested by the Prosecution in the Motion.

Rule 75(F)(i) of the Rules provides that once
protective measures have been ordered in respect
of a victim or witness in any proceedings before
the Tribunal, the measures shall continue to have
effect mutatis mutandis in any other
proceedings before the Tribunal unless they are rescinded,
varied or augmented. The Chamber sees no reason
to vary the protective measures granted in other
proceedings to the three witnesses concerned. Further,
the Prosecution has shown that security concerns
underlying the protective measures requested are
still present, calling for the use of protective
measures at trial for these witnesses.

With respect to witness #74, the Prosecution requests
that the witness’s testimony
be given under pseudonym (pseudonym “P026”) and in
closed session. The Prosecution also requests that
it be allowed to delay the disclosure of the witness’ identity
and his unredacted statements until thirty days prior
to the date on which the witness is to testify.9 The Chamber takes
note that witness #74 testified in other proceedings
before this Tribunal with a pseudonym, image and voice
distortion. The witness, however, did not testify under
closed session. The Defence objects to the Prosecution’s
request to augment protective measures as it would
affect the right of the accused to a fair and public
trial and requests that the Prosecution provide it
with the redacted version of the witness’
statement with no further delays.10

With regard to the request for witness #74’s testimony
to be given in closed session, the Chamber considers
that, in view of the highly sensitive nature of the
anticipated testimony and the current whereabouts
of the witness, there is a real risk to the security
of the witness and the family of the witness should
the testimony be given publicly before this Tribunal.
Further, it is the view of the Chamber that no less
restrictive measure can adequately deal with the
witness’ legitimate
concerns since the content of the testimony would lead
to the witness’ identification.

The Chamber notes that the reasons submitted
by the Prosecution for requesting the non-disclosure
to the Defence of witness #74’s identity until thirty
days before the witness is called to testify relate
to security and privacy concerns of the witness.
The Chamber finds that this measure, requested by
the Prosecution, is appropriate and necessary to
safeguard the privacy and protection of witness #74, and further finds it to be consistent with the rights
of the accused in this case. The Chamber is, therefore,
satisfied that the Prosecution has shown exceptional
circumstances justifying an order for non-disclosure
as is required by Rule 69(A
) of the Rules. The disclosure of the identity of
witness #74 will therefore be
delayed until thirty days prior to the date on which
the witness is to testify.

The Chamber notes that it appears from the
submissions that the Defence has not yet received
the statements of witness #74, even in a redacted
form. The Chamber is of the view that, unless otherwise
ordered, at this stage the Defence should have all
prosecution witness statements available with a view
to preparing its defence. Any concern which the
Prosecution might have in relation to the protection
of witness #74 can be accommodated by the redaction
of identifying information in the statement. The
Chamber has already ordered this to be the case until
thirty days prior to witness #74 giving evidence.
The Prosecution does not put forward any further
justification warranting the non-disclosure of the
material itself. The Chamber therefore orders the
Prosecution to disclose witness #74’s un-redacted
written statement no later than thirty days prior
to the date on which the witness is to testify,
and to disclose it in a redacted form forthwith.

With respect to witness P002, the Chamber notes
that this witness was granted a pseudonym pending
testimony on 9 March 2005 by order of the Trial Chamber
previously seized of the instant case.11 The
Prosecution now requests that this witness be referred
to by pseudonym “P002” in
the course of the trial, and that the witness’s testimony
be given in closed session.12 The Chamber recalls that in
other proceedings before the Tribunal, witness P002
initially testified in open session with no protective
measures even though some protective measures had been
ordered before his testimony. Later during his testimony,
due to circumstances concerning the witness’ personal
and family’s security, the evidence was cautioned in
closed session. Some months after the completion of
his evidence, at his request, order for protective
measures was lifted. Hence, despite what is alleged
in the party’s
submissions,13 strictly speaking,
the witness is not protected in other proceedings before
the Tribunal and therefore Rule 75(F)(i) of the Rules
cannot be applied. The protective measures requested
for this witness will, therefore, be considered outside
the scope of this Rule. The Defence objects to the
granting of protective measures to this witness on
the basis that the witness testified without protective
measures in domestic proceedings in Belgrade.14 The Chamber considers
that in view of the highly sensitive nature of the
anticipated testimony, there is a real risk to the
security of the witness and the family of the witness
should the testimony be given publicly before this
Tribunal. Further, it is the view of the Chamber that
no less restrictive measure can adequately deal with
the witness’
legitimate concerns since the content of the testimony
would lead to the witness’
identification. Witness P002 will therefore testify
in closed session.

B. Other Protective Measures sought:

The Prosecution requests that the Chamber grant
protective measures to ten other witnesses. With
respect to witness P001, the Chamber notes that this
witness was granted a pseudonym pending testimony
on 9 March 2005 by order of the Trial
Chamber previously seized of the instant case.15
The Prosecution now requests that this witness be referred
to by pseudonym “P001
” in the course of the trial, and that the witness’ testimony
be given with image and voice distortion.16 The Defence
objects to these protective measures without providing
any further explanation.17
For witness #44, witness #27, witness #45 and witness #85,
the Prosecution requests that their testimony be given
under pseudonym (pseudonyms “P021”, “P029”, “P031”
and “P032” respectively) and with image and voice distortion. 18
The Defence does not object to these protective measures.
The Chamber notes that these witnesses have personally
expressed serious and grave concerns for their own
safety and that of their family, based particularly
upon their personal experience. Upon evaluation of
the factual circumstances relied on by the Prosecution
in support of the protective measures at trial for
these witnesses,19
the Chamber is persuaded that there is an objective
basis demonstrating a real likelihood that the witnesses
concerned may be in danger.

With respect to witness #66, the Prosecution requests
that the witness’s testimony
be given under pseudonym (pseudonym “P022”) and in
closed session.20
The Defence objects to the granting of protective measures
to this witness in the ground that the public is already
aware of the witness’ identity and the protective
measures sought are therefore no longer necessary.21
The Chamber considers that in view of the highly sensitive
nature of the anticipated testimony, there is a real
risk to the security of the witness and the family
of the witness should the testimony be given publicly
before this Tribunal.

With respect to witness #68, the Prosecution requests
that the witness’s testimony
be given under pseudonym (pseudonym “P014”) and with
image and voice distortion.22
The Chamber notes that the Trial Chamber previously
seized of this case, in its decision dated 9 March 2005,
denied the requested protective measures for this witness
pending the submission of further material by the
Prosecution of the demonstration that there was a
real risk to the security of witness #68 or of the
witness’s family.23 In
the Motion, the Prosecution has adduced new material
in support of its request.24
Upon evaluation of these new factual circumstances,
the Chamber is persuaded that there is an objective
basis demonstrating a real likelihood of danger or
risk for the witness and the family of the witness.

With respect to witness #65, witness #80 and witness #81,
the Prosecution requests that their testimony be
given under pseudonym (pseudonym “P023”, “P024”, “P025”
respectively) and in closed session. The Prosecution
also requests that it be allowed to delay the disclosure
of the three witness’ identity and their unredacted
statements until thirty days prior to the date on
which the witnesses are to testify.25
The Defence objects to the Prosecution request as the
delayed disclosure of the identities of the three
witnesses and the non-disclosure of their unredacted
statements would be detrimental to the preparation
of the Defence case. The Defence further request that
the Prosecution provides the redacted version of the
witness’s statement
with no further delays.26

With regard to closed session, the Chamber
considers that, in view of the highly sensitive
nature of the anticipated testimonies, there is a
real risk to the security of the witnesses concerned
and the family of these witnesses should their testimony
be given publicly before this Tribunal.

The Chamber notes that the reasons submitted
by the Prosecution for requesting the non-disclosure
to the Defence of the identity of witnesses #65, #80
and #81 relate to the security and privacy concerns
of the witnesses. The Chamber finds that this measure,
requested by the Prosecution, is appropriate and
necessary to safeguard the privacy and protection
of the three witnesses concerned and further finds
it to be consistent with the rights of the accused
in this case. The disclosure of the identity of
witness #65, witness #80 and witness #81 to the Defence
will therefore be delayed until thirty days prior
to the date on which the witness is to testify.

The Chamber notes that, it appears from the
submissions that the Defence has not yet received
the statements of witness #65, witness #80 and witness #81,
even in a redacted form. As stated earlier, unless
otherwise ordered, at this stage the Defence should
have all witness statements with a view to preparing
the defence. Any concern which the Prosecution might
have in relation to the protection, these witnesses
can be accommodated by the redaction of identifying
information in the statement, until it is disclosed
in an unredacted form thirty days prior to the respective
witness giving evidence. The Prosecution does not
put forward any further justification warranting
the non-disclosure of the material itself. The Chamber
therefore orders the Prosecution to disclose the
un-redacted written statements of witness #65, witness #80
and witness #81 no later than thirty days prior to
the dates respectively on which each witness is
to testify, and to disclose it in a redacted form
forthwith.

IV. DISPOSITION

Based on the foregoing, pursuant to Articles 20, 21
and 22 of the Statute and Rules 54, 66, 69, 75 and
79 of the Rules, the Chamber GRANTS THE MOTION
IN PART
and ORDERS as follows:

1) All fifteen witnesses subject of the Motion shall
be given new pseudonyms, different, if any, from
those granted to these witnesses in other proceedings
before the Tribunal. The new pseudonym for each witness
is listed in Confidential Annex
I and Ex Parte Annex II attached to this decision.
These pseudonyms shall be used whenever referring
to the witnesses in question in this trial and related
proceedings before the Tribunal and in discussions
among parties to the trial.

3) The disclosure of the identity of witnesses of witness #65,
witness #80, witness
#81, and witness #74 will be delayed until 30 days
before each of the witnesses is called to testify.

4) The Prosecution shall forthwith disclose to the
Defence, in a redacted form, the statements of witness
#65, witness #80, witness #81, and witness #74.
The Prosecution will redact only the names, addresses,
whereabouts of, and identifying information concerning
each of the witnesses identified.

5) The Prosecution shall disclose the full and un-redacted
statements of witness #65, witness #80, witness #81,
and witness #74 no later
than thirty days respectively before each witness
is called to testify.

6) The name, address, whereabouts of, and identifying
information concerning each of the witnesses identified
in Confidential Annex I and Ex Parte Annex
II of this decision shall not be disclosed to the
public and shall not be included in any public records
of the Tribunal.

7) To the extent that the name, address, whereabouts
of, or other identifying data of the witnesses identified
in Confidential Annex I and Ex Parte Annex
II is contained in existing public records of the
Tribunal, that information shall be expunged from
those documents.

8) All hearings to consider the issue of protective
measures for the witnesses identified in Confidential Annex
I and Ex Parte Annex II shall be held in closed
session and edited records and transcripts of the
session(s) shall be released to the public and to
the media after review by the Prosecution, in consultation
with the Victims and Witnesses Section.

9) The public and the media may not photograph, video-record
or sketch or in any manner record or reproduce images
of the witnesses identified in Confidential Annex
I and Ex Parte Annex II while, they are in
the precincts of the Tribunal.

For the purposes of this decision:

“The Defence” means and includes the Accused, his
Defence Counsel and all those approved by the Registry
to assist with the Defence of the Accused.

“The public” means and includes all persons, governments,
organisations, entities, clients, associations, groups
and media, other than judges and staff of the Tribunal
Chambers and Registry, the Prosecution, the Defence,
and persons to whom it is necessary for the Defence
to disclose the material for the preparation and presentation
of the Defence case. “The public” specifically includes,
without limitation, family, friends and associates
of the Accused, the media, the accused in other cases
or proceedings before the Tribunal and/or national
courts, and defence counsel in other cases or proceedings
before the Tribunal and/or national courts.

“The media”, as mentioned above, means and includes
all video, audio, electronic and print media personnel,
including journalists, reporters, authors, television
and radio personnel, as well as their agents and representatives.

Nothing herein shall preclude any party or
person from seeking such other or additional protective
measure or measures as may be appropriate concerning
a specific witness or potential witness, or other
evidence.

Done in English and French, the English version being
authoritative.

Dated this twenty-fifth day of October 2005
At The Hague
The Netherlands